Hill. Term, 4. W. & M.
The Defendants being dissatisfied with this Judgment, brought a Writ of Error in the King's Bench, which came on to be Argued before the Judges of that Court, in Michaelmas Term last; who on the first Argument, seemed inclinable to affirm the Judgment which the Court of Common-Pleas had given; but the Defendants Councel pressing for another Argument, the Court gave them further time till the Term follow∣ing; and in Hillary Term last, the Councel for the Plaintiff was prepared, and offered to have Argued the Cause a second time, but the Councel for the Defendants (seeing the Opinion of the Court to be against them) refused to speak any more thereunto, but desired the Court to give their Judgment therein; so that even by the Defendants own Consent, as well as on the Matter in Law, the Court of King's Bench affirm'd the Judgment; and the Judges declared their Opinions of the insufficiency of the Plea, for the Reason above mentioned.
Obj. It may be Objected, that the Matter of Fact contained in the Bishop's Plea, is true, though it be not sufficiently pleaded; that Mr. Hodder is an Illiterate Man; that he is unworthy of Orders, by Reason of his Ignorance; and that he got them in a surreptitious manner; that the Bishop could not in Conscience admit him, when he found him so very unfit; so that this Judgment is given upon the bare formality of pleading only; when as Truth and Reason, and the preservation of the Church's Rights, are on the other side.
Answ. Mr. Hodder hath been a Benefic'd Clergy Man in Devonshire, Twenty Years and upwards, of a very Sober Conversation, and an Honest Chara∣cter amongst his Neighbours; and lookt upon, to be an Able, Painful, Diligent Man in his Function; his Insufficiency in Learning (whatever it be) was unknown to Mr. Hele, who is a private Country Gentleman; and finding Mr. Hodder a Priest in Orders, having charge of a great Congregation; and a great Family, but a small Income (his Vicaridge being not worth above 30 pounds per An.) out of Charity presented him to this Benefice of Southpole; where his Livelyhood would have been augmented, but his Charge very much lessened; for there are five times as many Souls in Ʋgborough, as there are in Southpole; so that if he be sufficient to keep that Benefice which he hath already, he is much more so to take this new Preferment.
If it be said that 'tis hard, that a slip in the formality of pleading, should lose to the Bishop the Right of Presentation; which by the Lapse is fallen to him; It's harder, that Mr. Hele's Charity to a poor Clergy-Man, should be the occasion of losing his Inheritance; and if the Bishop will take the advantage of a Lapse, to deprive the Patron of his Presentation; it's hoped, that the Patron may take any advantage the Law gives him to recover it.
Obj. Should this Judgment stand; Mr. Hodder (whom the said Bishop of Exon hath found unfit) shall be obtruded and thrust into the Church, against the Conscience and Duty of his Diocesan, who by reason of his Insufficiency, was bound to refuse him Institution.
Answ. With all due Respect to his Lordship and the Jurisdiction and Priviledges of the Church; it may in Answer be observed, that the Judgment at Law is, that the Patron shall recover the Presentation, not that Mr. Hodder shall have Institution; for now a Writ must go to the Metropolitane to require him to admit a fit Person to the Church on Mr. Hele's Presentation; and if he present Mr. Hodder again, and the Archbishop find him insufficient, he may refuse to admit him; so that 'tis not any hardship put upon the Lord Bishop of Exon, or any breach on the Jurisdiction of the Church; for the Archbishop is still Judge of Mr. Hodder's sufficiency; and he is also still lyable to the Bishop of Exon's Jurisdiction, who for the same Cause (admitting it sufficient) for which he refused him Institution to a new Benefice, may deprive him of that which he hath already.
The tender Regard that the Laws of England have to the preservation of the Temporal Rights of English Subjects, was the great Reason that guided the Opinions of the Judges in their Judging of this Case; for should every Ordinary be the absolute Judge of his own Cause of Refusal; and the Temporal Courts be obliged to give Judgment on a general Allegation of minus sufficiens in literatura without being in∣formed in what particular the Insufficiency lyes; it must from thence necessarily follow, that all the Patronages and Advowsons in the Hands of the Nobility and Gentry of England, must be precarious; for then the Ordinary may refuse any Clerk presented by a Rightful Patron, until the six Months be elaps'd, and then take the advantage of that delay which he himself occasion'd.